SM Electronic GmbH
General Purchasing Terms
(hereinafter “Purchasing terms”)


§1
General – Scope of Application

(1)    Our Purchasing terms apply exclusively; we do not accept any contradictory terms from the supplier, or terms which deviate from our Purchasing Terms, unless we have given explicit written consent to their application.  Our Purchasing Terms also apply even if we are aware of any contradictory terms, or terms which deviate from our Purchasing Terms and accept the delivery by the Supplier without reservation.

(2)    All agreements between ourselves and the Supplier, which are concluded on the basis of these Purchasing Terms (“Contract”) are set out in writing in the Contract.

(3)    With the first delivery according to the said Purchasing Terms, the Supplier accepts their exclusive application for all further orders.

(4)    Our Purchasing Terms also apply to all further transactions with the Supplier in the context of his business activity resulting from the current business relationship.

(5)    Our Purchasing Terms only apply to traders in the sense of § 310 Paragraph 4 BGB [German Civil Code].    


§ 2
Offers – Tender Documents

(1)    Orders and commissions (hereinafter "Order”) are binding if these are made or have been confirmed in writing.

(2)    If the Supplier does not accept our Order within a period of two weeks, we are entitled to cancellation.

(3)    The Contract comes into effect with the uncontradicted confirmation of the Order if no withdrawal as per Paragraph (2) has been effected on our part.

(4)    Correspondence shall be made with the Purchasing Department which places the Order. Agreements with other Departments require the written consent of our Purchasing Department in order for them to be effective.

(5)    Verbal agreements of any kind, which are made subsequent to the conclusion of the Contract also require the written consent of our Purchasing Department in order for them to be effective.

(6)    We reserve our right of ownership and copyright to all illustrations, drawings, calculations and other documents; these must not be made accessible to third parties without our explicit written consent. Such documents are to be exclusively utilised for production on the basis of our Order; after processing of the Order, they must be automatically returned to us. The documents are to be kept secret from third parties.


§ 3
Prices – Terms of Payment

(1)    The prices, in particular the prices stated in Orders, are binding fixed prices, which include all additional costs. In particular, they include all shipping and packaging costs, taxes, duties, commissioning costs, fees and other charges.

(2)    The statutory VAT is included in the price.

(3)    For each Order / Delivery invoices are to be issued separately and without delay to the address of our offices unless a different invoicing address is stated in the Order, giving details of the order number and other order codes as stated in our Order. The Supplier is responsible for all consequences resulting from the non-observance of this obligation, if he does not provide evidence that he is not responsible for such non-observance.

(4)    Payments due shall be made according to the terms stated in the Order on receipt of the correct invoice and the receipt of all goods ordered, insofar as these are free from defects or unless anything to the contrary has been explicitly agreed, or – in the case of works to be provided – after acceptance and the receipt of an auditable invoice. Periods of payment are deemed to commence at this time. Payments do not constitute recognition of the prices, terms, or contractual compliance of the goods supplied. Prior to the complete and proper fulfilment of the Contract, the payment of a reasonable amount may be withheld. In general, unless otherwise agreed in the Order, payments will be made 14 days after delivery and receipt of the invoice with 3% discount from the gross invoiced amount, or payment of the net price after 30 days. Discount periods commence on our receipt of the goods to be supplied. However, in deviation from this, the discount period commences on receipt of this invoice if a proper invoice is only received by us after receipt of the particular object ordered. Discount is also permissible if we account the claim by the supplier against justified counterclaims within 14 days.

(5)    We are entitled to rights of settlement and retention to the statutory extent.

(6)    Ownership of the goods supplied is transferred to us at the latest on full payment. Any extended or expanded reservation of title by the Supplier is excluded.


§ 4
Date of Delivery

(1)    The delivery periods and dates stated in the Order are binding. The goods ordered must be brought to the place of receipt stipulated in the Order (hereinafter “Place of Supply) at the specified date.

(2)    The Supplier is obliged to notify us in writing immediately if circumstances arise, or are recognised by him, which could cause a delay in delivery.

(3)    In the case of delay in delivery, we are entitled to the statutory rights. In particular, on the fruitless expiry of a reasonable period we are entitled to compensation in lieu of the service, and withdrawal. If we demand compensation, the Supplier is entitled to prove to us that he is not responsible for the delay in delivery.

(4)    If the delivery is made earlier than agreed, we reserve the right not to accept the delivery, or to return it at the Supplier's expense. If the goods are not returned, we shall store the goods delivered at the expense and risk of the Supplier until the agreed delivery date.

(5)    In the case that the Supplier is in arrears with his obligation to supply, we are entitled to demand a contractual penalty of 1% for each commenced calendar week, however to a maximum of 5% of the total payment. We are entitled to claim the reserve of the contractual penalty until the final payment. We reserve the right to claim for further damages.


§ 5
Acceptance

(1)    The acceptance of commissioned works can only be made formally by means of a jointly signed acceptance report.

(2)    Acceptance shall only be performed by ourselves or by ourselves with the cooperation of our end customer.

(3)    Acceptance will be made immediately after completion of trial operation at a date to be specified by us. Notice of completion of the trial operation and the acceptance date are to be previously announced within a reasonable period.


§ 6
Transfer of Risk - Documents

(1)    Unless otherwise agreed, delivery must be made carriage free – all transport costs, including shipping and packaging cost and other additional costs are at the expense of the Supplier. Additional costs necessary for the compliance with a delivery date, such as any express shipment, are to be paid by the supplier.

(2)    Otherwise, the transfer of risk for works provided shall be as per § 644, Paragraph 1 Pg. 1 and 2 BGB [German Civil Code].

(3)    Each delivery must include the consignment notes and delivery notes, stating the contents; we shall not be responsible for delays in processing if the Supplier neglects to do this.

(4)    If we so request, the Supplier must take back any packaging. The place of service for the obligation of return of packaging is our business premises, unless stated to the contrary in our order confirmation. The costs for the return and / or return transport of packaging to his business premises shall be at the expense of the Supplier.


§ 7
Fault Inspections – Liability for Faults

(1)    We are obliged to inspect the objects supplied with regard to any material faults (deviations in quality and/or quantity) within a reasonable period. In the case of obvious faults, the complaint shall be deemed to have been made in good time if it is received by the supplier within 5 working days of the receipt of the delivered goods. In the event of concealed faults, the complaint shall be deemed to have been made in good time if it is received by the supplier within 5 working days subsequent to the discovery of the fault.

(2)    We are entitled to claims for faults to the full extent of the law. In all cases we are entitled at our discretion to demand the remedy of the fault or the provision of a new object by the Supplier.

(3)    We are entitled to undertake the remedy of the fault ourselves at the cost of the Supplier if danger is imminent or there is a need for particular urgency.

(4)    The period of limitation is 36 months, calculated from the time of transfer of risk. For delivered components which were unable to remain in operation during the investigation of the material fault and/or the remedy of the fault, the current period of limitation shall be extended by the period of interruption of operation.

(5)    We are only obliged to make complaints regarding faults to partial deliveries if these have been explicitly agreed with the Supplier. With regard to the timely notification of complaints of material faults, the previous paragraph (1) applies.


§ 8
Quality

The Supplier assures that all components and objects which he supplies, and services which he provides correspond to the state-of-the-art.


§ 9
Product Liability – Release – Liability Insurance

(1)    Insofar as the Supplier is responsible for damage resulting from the product, he is obliged to release us from any claims for compensation by third parties on first demand, if the cause lies in his sphere of influence and organisation and he is himself liable to third parties.

(2)    In the context of his liability for damages in the sense of Paragraph (1) the Supplier is obliged to reimburse any expenses as per §§ 683, 670 BGB or as per §§ 830, 840, 426 BGB, which we incur from or in association with any recall action carried out by us. With regard to the content and the extent of the recall measure to be carried out, as far as is possible and reasonable, we shall inform the Supplier and provide him with an opportunity to comment. Other statutory claims remain unaffected.

(3)    The supplier assures the existence of a product liability insurance. If we are entitled to further claims for compensation which are not covered by this, these shall remain unaffected.


§ 10
Protective Rights

(1)    The Supplier is responsible that no rights of third parties are infringed by the delivery.

(2)    If claims are made against us by a third party, the Supplier is obliged to release us from these claims on first written demand.

(3)    The obligation of release by the Supplier relates to all expenses which necessarily result from or in association with the claim by a third party.

(4)    The period of limitation is 10 years, calculated from the time of transfer of risk.


§ 11
Transfer of Orders to Third Parties

The transfer of Orders to third parties without our written consent is not permitted and entitles us to withdraw from the Contract entirely or in part and to demand compensation.


§ 12
Reservation of Title – Provision – Tools –

(1)    Insofar as we provide components to the Supplier, we reserve the ownership of the aforesaid. Processing or transformation by the Supplier is performed for us. If goods to which we reserve the title are processed with other goods which are not our property, we shall acquire co-ownership of the new goods in relation of the value of our goods (purchase price plus VAT) to the other processed goods at the time of their processing.

(2)    If goods to which we reserve the title are indivisibly mixed with other good which are not our property, we shall acquire co-ownership of the new goods in relation of the value of our goods (purchase price plus VAT) to the other mixed goods at the time of their mixing. If the mixing is performed in such a manner that the Supplier’s goods are to be regarded as the main goods, then it is deemed to be agreed that the Supplier transfers proportional co-ownership to us. The Supplier takes our exclusive property or co-owned property into safekeeping for us.

(3)    We retain the ownership of tools. The Supplier is obliged to only utilise the tools for the manufacture of the goods ordered by us. The Supplier is obliged to insure our tools for their new value at his expense against damage due to fire, water and theft. The Supplier hereby cedes all claims for compensation from this insurance to us. He is obliged to perform and necessary maintenance and inspection costs and all servicing and repair work in good time at his own expense. He must report the occurrence of any faults to us immediately. If he culpably neglects to do this, we are entitled to claim compensation for any damage which results. All claims for compensation remain unprejudiced by this.

(4)    The Supplier must return all illustrations, drawings, calculations and other documents, information or means of production which he has received, as well as the goods produced with the aforesaid, in perfect condition on demand, as soon as the Order is complete, or as soon as it is apparent that the Order will not be placed. Individual items and copied items may not be retained. On demand by us, the Supplier must destroy documents or means of production which have been paid for by us, and if necessary provide evidence of this.


§ 13
Transfer of Claims, Accounting of Claims

(1)    Claims against us of any kind whatsoever resulting from this Contract may not be transferred without our written consent.

(2)    The Supplier is only entitled to account claims which are not contested or which have been legally established.


§ 14
Endangering of Fulfilment

If during the period of the Order the economic circumstances of the Supplier deteriorate in a manner which seriously endangers fulfilment; if he discontinues his payments (even temporarily); or insolvency proceedings or a legal or out-of court composition proceedings are applied for, we shall be entitled to withdraw from the part of the Contract which has not been fulfilled. We are entitled to withdraw from the Contract completely if partial fulfilment is not of interest to us.


§ 15
Applicable Law – Place of Jurisdiction – Place of Fulfilment – Written Form – Salvational Clause

(1)    German Law applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG).

(2)    The sole place of jurisdiction for all claims resulting from and in association with the particular Contract is the seat of our company. However, we are entitled to litigate against the Supplier before the court of his place of residence/seat of his company.

(3)    Unless stated to the contrary in the Order, the place of fulfilment is the place of delivery stated in the Order. The place of fulfilment for all payments is Stapelfeld.

(4)    Amendments and supplements to these agreements must be made in writing. This also applies to amendments to this requirement for the written form.

(5)    If one or more provisions of these General Purchasing terms is or becomes partially or entirely ineffective, this does not prejudice the effect of the remaining provisions. The parties commit to replace the ineffective provision with one which corresponds to the commercial purpose of the Contract.




Status 08/2008

SM Electronic GmbH
General Terms of Sale, Supply and Payment
(hereinafter “Sales terms”)


§ 1
General – Scope of Application
(1)    Our Terms of Sale apply exclusively; we do not accept any contradictory terms from the supplier, or terms which deviate from our Terms of Sale, unless we have given explicit written consent to their application.  Our Terms of Sale also apply if we provide deliveries to the customer without reservation, even though we are aware of terms of the customer which contradict or deviate from our Terms of Sale.

(2)    All agreements between ourselves and the Supplier, which are concluded on the basis of these Terms of Sale (“Contract”) are set out in writing in the Contract.

(3)    Our Terms of Sale also apply to all further transactions with the Supplier in the context of his business activity resulting from the current business relationship.

(4)    Our Terms of Sale only apply to traders in the sense of  § 310 Paragraph 1 BGB [German Civil Code].


§ 2
Offer – Tender Documents
(1)    If the order is to be qualified as an offer as per § 145 BGB , we may accept this within 2 weeks.

(2)    The Contract is only concluded with our confirmation of the order. Our confirmation may also be tacit.

(3)    We reserve the right of ownership and copyright to our illustrations, calculations and other documents. This also applies to those written documents, which are classified as “confidential”. The customer must obtain our explicit written consent prior to their communication to third parties.

§ 3
Prices – Terms of Payment
(1)    Unless stated otherwise in the confirmation of order, our prices apply “ex place of dispatch”, exclusive of packaging and shipping. These will be invoiced separately.

(2)    Our prices do not include the statutory VAT. This will be separately stated in the invoice to the statutory amount at the date of issue of the invoice.

(3)    The deduction of discount for cash requires special written agreement.

(4)    Unless otherwise stated in the order confirmation, payment of the net purchase price (without deduction) is due within 30 days of the date of the invoice. The statutory regulations regarding the consequences of arrears of payment apply.

(5)    The customer is only entitled to right of set-of if his counter-claims are legally established, uncontested, or have been recognised by us. In addition, the customer is only entitled to a right of retention insofar as his counterclaim is based on the same contractual relationship and the same prerequisites are fulfilled.

(6)    Cheques and bills of exchange will only be accepted on account of performance. The acceptance of bills of exchange requires explicit agreement. The costs of bills of exchange and discount interest shall be borne by the customer.

§ 4
Delivery Time
(1)    The commencement of the delivery time stated by us is dependent on the clarification of all technical queries and the timely and proper fulfilment of the customer’s obligations.

(2)    Unless otherwise agreed in writing, or unless stated to the contrary in the Contract, delivery times stated by us are not binding.

(3)    Unforeseeable, unavoidable hindrances, which are not within our sphere of influence and for which we are not responsible, such as acts of violence, war, natural disasters, official orders, disturbances to operation, difficulties in obtaining raw materials, delays in delivery by our suppliers, lack of means of transport or industrial disputes release us from the obligation to punctual delivery for the duration of their effect. Agreed periods are extended by the duration of the disturbance. The customer will be informed of the occurrence of the disturbance in an appropriate manner. If the end of the disturbance cannot be foreseen, or if it continues for longer than three months, each party is entitled to withdraw from the Contract.

(4)    If the customer is in arrears of acceptance, or if he culpably infringes against other obligations of cooperation, we are entitled to demand compensation for the resulting damage, including any additional costs. We reserve the right to further claims.

(5)    We are entitled to partial delivery unless this is contradicted by a recognisable interest of the customer.

(6)    Insofar as the conditions of Paragraph (4) apply, the risk of accidental loss or accidental deterioration of the purchased goods is transferred to the customer at the time at which the aforesaid becomes in arrears with acceptance or payment.

§ 5
Transfer of Risk – Packaging Costs
(1)    Unless otherwise stated in the order confirmation, delivery “ex works / ex warehouse” is deemed to be agreed. The risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the latest on leaving the works/warehouse. This applies regardless of whether the goods are dispatched from the place of fulfilment or who is responsible for the payment of the shipping costs. This also applies in the case of partial deliveries.

(2)    Special regulations apply for the return of packaging materials.

(3)    At the explicit request of the customer we shall provide shipping insurance for the delivery. Any costs incurred shall be borne by the customer.

§ 6
Examination for Faults – Liability for Faults
(1)    Claims of material faults by the customer are condition on the customer having fulfilled his obligations for examination and complaint as per § 377 HGB [German Commercial Code]. For electronic components, a reject quota of 10% is normal and does not constitute a fault in the overall delivery.

(2)    Complaints must be made immediately in writing, at the latest 5 working days after the delivery. Liability for concealed faults is also excluded three months after delivery.

(3)    Insofar as there is a fault, at our discretion the customer may demand subsequent fulfilment in the form of rectification of the fault or the delivery of a new object which is free of faults. In the case of rectification of faults, we are obliged to bear all costs necessary for the rectification of the fault, in particular transport, travelling, working and material costs, insofar as these are not increased by the object delivered having been brought to a place other than the place of fulfilment.

(4)    If we firmly and finally refuse to rectify the fault, or if there are special circumstances, which with careful consideration of the interests of both sides justify the immediate claim of rights other than those stated above; if the rectification of the fault or the replacement delivery is not successful or is not acceptable to the customer, or we have refused on the grounds of unreasonable costs, according to the statutory regulations the customer may, at his discretion withdraw from the Contract, reduce the price or demand compensation in lieu of fulfilment (or compensation for his expenses).

(5)    If the customer receives faulty assembly instructions, we are only obliged to supply assembly instructions, and only then if the fault in the assembly instructions hinders the proper assembly.

(6)    The period of limitation for claims for faults is 12 months, calculated from the time of transfer of risk. § 8 remains unaffected.

(7)    The period of limitation in the case of recourse for a delivery as per §§ 478, 479 BGB remains unaffected. This is five years as of the delivery of the faulty goods.


§ 7
General Limitations of Liability
(1)    We are liable to the customer for unlimited compensation according to the statutory regulations, unless Clause (2) provides otherwise.
 
(2)    We are  
–    liable to the amount limited by foreseeable damages typical for the Contract in the case of breach of essential obligations resulting from the Contract due to slight negligence by ourselves or our agents;  

–    not liable for breaches of inessential obligations resulting from the Contract due to slight negligence by ourselves or our agents.

–    not liable for damages due to faults or consequential damage.

The aforementioned limitation of liability does not apply in cases of mandatory statutory liability (in particular according to the Product Liability Act) and for the undertaking of a guarantee or for culpable bodily injury.

(3)    Clauses (1) and (2) apply to all claims for compensation, regardless of their legal grounds, in particular also for liability due to unlawful action.

(4)    The customer is obliged to take appropriate measures for the prevention and minimisation of damage.


§ 8
Reservation of Title
(1)    We reserve the title to the object supplied until all payments resulting from the Supply Contract have been received. In case of breach of Contact by the customer, in particular in the case of arrears of payment, we are entitled to repossess the object supplied. Repossession of the object supplied does not constitute a withdrawal from the Contract. After repossession of the object supplied, we are entitled to utilise this. The proceeds from this utilisation are to be accounted against the customer’s liabilities – minus reasonable costs for the utilisation.

(2)    The customer is obliged to take good care of the object supplied. In particular he is obliged to insure it to its value as new, at his own expense, against damage due to fire, water and theft. If maintenance and inspection work is necessary, this must be carried out by the customer at his own expense and in good time.

(3)    The customer must inform us immediately in writing of seizure or other intervention by third parties, in order that we may initiate litigation as per § 771 ZPO [Code of Civil Procedure] (Objection to third party proceedings) Insofar as the third party is unable to reimburse us for the legal and out-of-court costs for litigation as per § 771 ZPO, the customer is liable for any losses which we incur.

(4)    The customer is entitled to resell the object supplied in the course of normal business. However, he hereby assigns to us all claims to the total of the final invoiced amount (including VAT), against his purchaser or third parties as a result of the resale, regardless of whether the object supplied was resold prior to or subsequent to processing. The customer is entitled to call in this claim even subsequent to the said assignment. Our authority to call in this claim ourselves remains unprejudiced by this. However, we commit not to call in the claim as long as the customer fulfils his obligations for payment from the proceeds received, does not become in arrears with payment, and in particular does not apply for the initiation of receivership or bankruptcy proceedings, or payments are suspended. If however this is the case, we may demand that the customer makes known to us the assigned claims and their debtors, and hands over all the documents necessary for the calling in of the claim and notifies the debtors (third parties) of the assignment.

(5)    Processing or conversion by the customer of the object supplied is always undertaken on our behalf. If the object supplied is processed with other objects, which are not our property, we acquire co-ownership of the new object in proportion of the value of the goods supplied to the value of other processed goods (total invoiced value including VAT) at the time of processing. Furthermore, the same applies to the object created by processing as for the object supplied under reservation.

(6)    If the object supplied is inseparably mixed with other objects, which are not our property, we acquire co-ownership of the new object in proportion of the value of the goods supplied to the value of other mixed goods (total invoiced value including VAT) at the time of mixing. If the mixing is performed in such a manner that the Supplier’s goods are to be regarded as the main goods, then it is deemed to be agreed that the Supplier transfers proportional co-ownership to us. The customer keeps the sole property or co-owned property thus produced on our behalf.

(7)    The customer also assigns to us the claims for the securing of our claims against third parties which result from the integration of the object supplied with a plot of land.

(8)    On request by the customer, we commit to release the securities due to us insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is our responsibility.


§ 9
 Transfer of Orders to Third Parties
(1)    We are entitled to pass on orders to third parties and/or to employ sub-contractors.

(2)    The customer also commits to cooperation with the third parties/sub-contractors in order that the Contract may be fulfilled. In particular he commits to allow third parties / sub-contractors access to his business premises for the fulfilment of the Contract and to allow his employees to take part in training etc.

§ 10
Applicable Law – Place of Jurisdiction – Place of Fulfilment – Written Form – Salvational Clause
(1)    If the customer is a businessman, our offices are the place of jurisdiction. However, we are also entitled to litigate against the customer at the court of his place of residence/business.

(2)    German Law applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG).

(3)    Unless otherwise stated in the order confirmation, the place of fulfilment for deliveries and payments and other liabilities is Stapelfeld.

(4)    Amendments and supplements to these agreements must be made in writing. This also applies to amendments to this requirement for the written form.

(5)    If one or more provisions of these General Terms of Sale is or becomes partially or entirely ineffective, this does not prejudice the effect of the remaining provisions. The parties commit to replace the ineffective provision with one which corresponds to the commercial purpose of the Contract.

Status 08/2008